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Suffolk County Elec. Contr. Assn., Inc. v Town Bd. ofthe Town of Islip2013 NY Slip Op 33458(U)December 19, 2013Supreme Court, Suffolk CountyDocket Number: 37609/2011Judge: Joseph FarnetiCases posted with a "30000" identifier, i.e., 2013 NYSlip Op 30001(U), are republished from various stateand local government websites. These include the NewYork State Unified Court System's E-Courts Service,and the Bronx County Clerk's office.This opinion is uncorrected and not selected for officialpublication.
[* 1]INDEX NO. 37609/2011SHORT FORM ORDERSUPREME COURT - ST ATE OF NEW YORK1.A.S. TERM. PART 37 - SUFFOLK COUNTYPRESENT:HON. JOSEPH FARNETIActing Justice Supreme CourtSUFFOLK COUNTY ELECTRICALCONTRACTORS ASSOCIATION, INC.,PALK ELECTRIC, INC., and DAVIDKENNEDY,Plaintiffs,-againstTOWN BOARD OF THE TOWN OF ISLIPand the TOWN OF ISLIP,Defendants.ORIG. RETURN DATE: JANUARY 31 , 2012FINAL SUBMISSION DATE: FEBRUARY 28 , 20 13MTN. SEQ. #: 001MOTION: MGPLTF'S/PET'S ATTORNEY:SUSAN A. DENATALE, ESQ.982 MONTAUK HIGHWAY - SUITE 6BAYPORT, NEW YORK 11705631-772-1246DEFT'S/RESP ATTORNEY:ROBERT L. CICALE, ESQ.ISLIP TOWN ATTORNEY655 MAIN STREETISLIP, NEW YORK 11751631-224-5550Upon the following papers numbered 1 to9read on this motionFOR A PRELIMINARY INJUNCTIONOrder to Show Cause and supporting papers ; Summons and Verified Complaint 4 5 ,Affirmation in Opposition and supporting papers 6 7 ; Verified Answer 8 ; Reply Affirmation9; it is,ORDERED that this motion by plaintiffs, SUFFOLK COUNTYELECTRICAL CONTRACTORS ASSOCIATION, INC. ("SCECA"), PALKELECTRIC, INC., and DAVID KENNEDY (collectively "plaintiffs"), for an Ordergranting a preliminary injunction restraining the defendants, TOWN BOARD OFTHE TOWN OF ISLIP and the TOWN OF ISLIP ("Town Board" or "Town" orcollectively "defendants"), from proceeding on a proposed local law entitledChapter 3E, "Apprenticeship Participation in Commercial Construction" ("LocalLaw") upon the grounds that: (1) defendants have failed to provide the requisitepublic notice of the hearing on the proposed Local Law; (2) defendants arespecifically prohibited from enacting the Local Law by Municipal Home Rule Law§ 11 (f); (3) the proposed Local Law is preempted by the Labor Law; (4)defendants lack authority to enact the proposed Local Law; and (5) defendantsare prohibited from proceeding unless and until they have complied with the
[* 2]SUFFOLK COUNTY ELEC . CONTR. ASSN ., INC. v. TOWN OF ISLIPINDEX NO . 37609/2011FARNETI , J .PAGE 2requirements of the Environmental Law (SEQRA), is hereby GRANTED for thereasons set forth hereinafter. The Court has received opposition to thisapplication from defendants.This action was commenced by summons and verified complaint onDecember 12, 2011, seeking a judgment, pursuant to CPLR 3001, declaring thatdefendants are without authority to enact the Local Law, as well as permanentlyenjoining defendants from taking any further actions in connection with theproposed Local Law. Plaintiffs filed the instant application, by Order to ShowCause, seeking a preliminary injunction restraining defendants from proceedingon the Local Law. The Court (Garguilo, J.), declined to grant plaintiffs atemporary restraining Order pending the determination of this motion, which wassought to preserve meaningful judicial review of the alleged inadequate publicnotice given regarding the Local Law.SCECA is a trade organization comprised of approximately 280electrical contractors within the County of Suffolk, including electrical contractorswho have and continue to do business on commercial projects exceeding100,000 square feet within the Town of Islip. Plaintiff PALK ELECTRIC, INC. isan electrical contractor, and plaintiff DAVID KENNEDY is a master electriciandoing business as Kennedy Electrical Contracting, Inc., who have and continue todo business on commercial projects exceeding 100,000 square feet within theTown of Islip.Defendants' resolution drafted in connection with the proposedenactment of the Local Law provides in pertinent part:WHEREAS . the Town Board wishes to enact a locallaw establishing a requirement that all applications forpermits for the construction of a commercial building ofat least 100,000 square feet must includedocumentation evidencing that any general contractor,contractor, or subcontractor participates in anapprenticeship training program appropriate for the typeand scope of work to be performed, that has beenapproved by the New York State Department of Labor,in accordance with Article 23 of the New York StateLabor Law.Consequently, the proposed Local Law would mandate that all applications forbuilding permits for commercial buildings of at least 100,000 square feet mustinclude evidence of participation in an apprenticeship training program.
[* 3]SUFFOLK COUNTY ELEC . CONTR. ASSN., INC . v. TOWN OF ISLIPINDEX NO . 37609/2011FARNETI , J.PAGE 3Plaintiffs now argue that: (1) the proposed local law is preempted bythe comprehensive provisions of Article 23 of the Labor Law; (2) the TownBoard's imposition of additional required preconditions for a building permit,which are unrelated to the property, are "patently" ultra vires; (3) the proposedlegislative action represents overreaching which interferes with private contracts;and (4) the local law contravenes and abrogates preexisting competitive biddinglaws. Further, plaintiffs allege that the mandatory provision of the Local Lawcontradicts New York State's Labor Law, which currently provides a voluntaryapprenticeship program. Plaintiffs inform the Court that the apprenticeshipprogram for an electrician requires five years of schooling, at a cost of 50,000.00per apprentice, as well as additional on-the-job training. Plaintiffs contend that ifmembers of SCECA attempt to comply with the proposed Local Law, "therestrictions will virtually bankrupt the majority of (its] membership" who are small,independent contractors that employ between one to eight electricians. Suchmembers of SCECA are therefore allegedly at a competitive disadvantage ascompared to larger contractors with existing apprenticeship programs.Moreover, plaintiffs contend that defendants failed to give therequisite public notice of the enactment of the local law, in violation of MunicipalHome Rule Law§ 20 (5), as well as the Town Code of the Town of Islip. Notably,plaintiffs inform the Court that pursuant to Section 1A-3(B) of the Islip TownCode, "[n]o ordinance or amendment previously adopted or approved by theTown Board shall be void for failure to comply with the provisions of this locallaw." Therefore, plaintiffs claim that they will be foreclosed from challenging thefailure to provide public notice unless the challenge is lodged prior to the adoptionof the Local Law. Furthermore, plaintiffs argue that pursuant to Municipal HomeRule Law§ 11 (1) (f), defendants are wholly prohibited from enacting a local lawthat "[a]pplies to or affects any provision of . the labor law." In support of theinstant application, plaintiffs have submitted, among other things, an affidavit ofMichael Towers, president of SCECA, and an affidavit of Thomas Palk, presidentof plaintiff PALK ELECTRIC, INC.In opposition, defendants contend that the proposed Local Law wasproperly noticed in all respects, as the governing notice provisions are allegedlyset forth in Municipal Home Rule Law§ 20 (5), not in Section 1A-1 (A) of the IslipTown Code. Defendants indicate that contrary to plaintiffs' argument, Chapter 1Aof the Islip Town Code only applies to the enactment of ordinances, not locallaws.Defendants further contend that the Local Law does not indicate anintent to supersede any provision of the Labor Law, and therefore does notcontain, and is not required to contain, the recitations set forth in Municipal Home
[* 4]SUFFOLK COUNTY ELEC. CONTR. ASSN., INC. v. TOWN OF ISLIPINDEX NO. 37609/2011FARNETI, J.PAGE4Rule Law§ 22. Moreover, defendants allege that contrary to plaintiffs'contention, Municipal Home Rule Law§ 11 (1) (f) does not prohibit passage ofthe Local Law, in that the Local Law does not fall within the ambit of what isprohibited by that section of the Home Rule Law. Defendants argue thatMunicipal Home Rule Law§ 11 (1) (f) strictly applies to a local law whichsupersedes a State labor law, only if it applies to or affects "sections two, threeand four of chapter one thousand eleven of the laws of nineteen hundred sixtyeight." However, the Court notes that "sections two, three and four of chapterone thousand eleven of the laws of nineteen hundred sixty-eight" were codified inSections 971-a, 1012-a, and 1015 of New York's Unconsolidated Laws, and notin New York's Labor Law.Furthermore, defendants allege that the proposed Local Law is notpreempted by Article 23 of the Labor Law, as it has been held that Article 23 doesnot preempt the entire field of apprenticeship training. In addition, defendantsargue that the proposed Local Law does not conflict with Article 23, but rathersupplements it and governs how an apprenticeship program "must be run."Defendants claim that the Local Law actually advances the public policyunderlying Article 23, in that it requires contractors on the largest commercial jobsin the Town of Islip to participate in registered and approved apprenticeshipprograms, and it "rewards" those who have instituted such programs. Finally,defendants contend that the Town was not required to comply with SEQRA, asthe proposed Local Law is not an "action" as defined by SEQRA, which mighthave a significant impact on the environment.In reply, plaintiffs maintain that the Local Law is preempted by Article23 of the Labor Law, as it conflicts with the State legislation "in virtually allmaterial respects," and prohibits activities that are permissible under State lawand imposes additional requirements. Further, plaintiffs indicate that the LocalLaw diminishes the broad powers of the Commissioner of Labor to superviseapprenticeship programs, as it improperly transfers such powers to the Town'sChief Building Inspector. Additionally, plaintiffs allege that the Local Law offendsthe State policy by forcing private parties to implement costly apprenticeshiptraining programs or face stiff and onerous penalties, which places plaintiffs at anextreme competitive disadvantage to those contractors with establishedapprenticeship programs.Since a preliminary injunction prevents litigants from taking actionsthat they would otherwise be legally entitled to take in advance of an adjudicationon the merits, it is considered a drastic remedy which should be issued cautiously(see Uniformed Firefighters Assn. of Greater N. Y. v City of New York, 79 NY2d236 [1992]; Gagnon Bus Co., Inc. v Vallo Transp., Ltd., 13 AD3d 334 [2004];
[* 5]SUFFOLK COUNTY ELEC. CONTR. ASSN., INC. v. TOWN OF ISLIPINDEX NO. 37609/2011FARNETI, J.PAGE 5Bonnieview Holdings v Allinger, 263 AD2d 933 [1999]). Thus, in order to obtain apreliminary injunction, a moving party must demonstrate: (1) a likelihood ofsuccess on the merits; (2) an irreparable injury absent the injunction; and (3) abalancing of the equities in its favor (see CPLR 6301; Aetna Ins. Co. v Capasso,75 NY2d 860 [1990]; Iron Mtn. Info. Mgt., Inc. v Pullman, 41 AD3d 656 [2007];Gerstner v Katz, 38 AD3d 835 (2007]). To sustain its burden of demonstrating alikelihood of success on the merits, the movant must demonstrate a clear right torelief which is plain from the undisputed facts (see Gagnon Bus Co., Inc. v ValloTransp., Ltd., 13 AD3d 334, supra; Dental Health Assoc. v Zangeneh, 267 AD2d421 [1999]; Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348 [1998]).Here, the Court has weighed the elements necessary for the grantingof a preliminary injunction and finds that plaintiffs have met their burden. Initially,the Court finds that this matter is ripe for determination, as the Town Boardcontrols whether or not the contemplated Local Law is enacted, and plaintiffsallege that the Local Law will most likely be approved in the absence of aninjunction. A justiciable controversy exists when the contingent future event is"contemplated by one of the parties" (Hussein v State of New York, 81 AD3d 132,135-36 [2011 ]; see Rockland County Multiple Listing System, Inc. v State, 72AD2d 742 (1979]; Sydney Sol Group Ltd. v State of New York, 2013 NY Slip Op51968[U] (Sup Ct, New York County]).The plain language of Municipal Home Rule Law§ 11 (1) (f) requiresthat, in order to be invalid, a local law must first supersede a State statute, andthen it must additionally apply to or affect a provision of one of the enumeratedbodies of State law, i.e. the Labor Law (see Municipal Home Rule Law§ 11 [1] fn;/LC Data Device Corp. v County of Suffolk, 182 AD2d 293 [1992]). Here, asdiscussed, the Local Law contains no statement indicating an intent to supersedeany other law. Additionally, the Local Law admittedly does not comply with theprocedural requirements for superseding a State statute as set forth in MunicipalHome Rule Law § 22, and in the absence of substantial compliance,supersession will not be found (see Kamhi v Yorktown, 74 NY2d 423 [1989]).Hence, as there is no supersession herein, the Court must still determine whetherthe Local Law is inconsistent with or preempted by New York State's Labor Lawso as to render it invalid under New York Constitution, article IX, § 2 (c) (ii) andMunicipal Home Rule Law§ 10 (1) (ii).Although the constitutional home rule provision confers broad policepowers upon local governments relating to the welfare of its citizens, localgovernments may not exercise their police power by adopting a law inconsistentwith the Constitution or any general law of the State (NY Const, art IX, § 2 [c];Municipal Home Rule Law§ 1O; New York State Club Assn. v City of New York,
[* 6]SUFFOLK COUNTY ELEC . CONTR. ASSN ., INC. v. TOWN OF ISLIPINDEX NO . 37609/2011FARNETI , J.PAGE 669 NY2d 211 [1987]; Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99[1983]; Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679[1980]). A local law may be ruled invalid as inconsistent with State law not onlywhere an express conflict exists between the State and local laws, but also wherethe State has clearly evinced a desire to preempt an entire field therebyprecluding any further local regulation (New York State Club Assn. v City of NewYork, 69 NY2d 211, supra; Matter of Ames v Smoot, 98 AD2d 216 [1983]).Where it is determined that the State has preempted an entire field, a local lawregulating the same subject matter is deemed inconsistent with the State'soverriding interests because it either: (1) prohibits conduct which the State law,although perhaps not expressly speaking to, considers acceptable or at leastdoes not proscribe (New York State Club Assn. v City of New York, 69 NY2d 211,supra); or (2) imposes additional restrictions on rights granted by State law (seeRobin v Incorporated Vil. of Hempstead, 30 NY2d 347 [1972]). However, thisCourt is mindful of prior case law holding that the State has not preempted theentire field of legislation affecting apprenticeship training programs (see Broidrickv Lindsay, 48 AD2d 639 [1975]; Stathopolos v Smith, 141 Misc 2d 1023 [Sup Ct,New York County 1988], affd for reasons stated below 162 AD2d 252 [1st Dept1990]).Notwithstanding the foregoing, under the doctrine of conflictpreemption, a local law is preempted by a State law when a local law prohibitswhat a state law explicitly allows, or when a state law prohibits what a local lawexplicitly allows (see Matter of Ch wick v Mulvey, 81 AD3d 161 [201 OJ). "The cruxof conflict preemption is whether there is a head-on collision between theordinance as it is applied and a state statute" (Matter of Chwick v Mulvey, 81AD3d 161, 168 [citations omitted]). The Court of Appeals has held that thegeneral principle set forth in the case relied upon by plaintiffs, Wholesale LaundryBoard of Trade, Inc. v New York, 17 AD2d 327 (1963), affd 12 NY2d 998 (1963),applies when the State specifically permits the conduct prohibited at the locallevel (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91 [1987]; see alsoMonroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679, supra;Niagara Recycling v Town of Niagara, 83 AD2d 316 [1981]). Here, the Local Lawmandates that plaintiffs participate in apprenticeship training programs forconstruction of commercial buildings of at least 100,000 square feet or else beprecluded from obtaining a building permit therefor, while under State lawplaintiffs would not be so precluded if they choose not to participate in anapprenticeship training program. Accordingly, the Court finds that on this recordplaintiffs have demonstrated a likelihood of success on the merits based upon thedoctrine of conflict preemption.
[* 7]SUFFOLK COUNTY ELEC. CONTR. ASSN., INC. v. TOWN OF ISLIPINDEX NO. 37609/2011FARNETI, J.PAGE 7With respect to irreparable injury, plaintiffs allege that the enactmentof the Local Law would essentially prevent plaintiffs from conducting anybusiness in the Town, and would cause plaintiffs to lose all of their customers inthe Town, thereby resulting in a substantial loss of business, opportunity, andgood will. Plaintiffs claim that the Local Law may force many of the members ofSCECA out of business completely. These types of losses are not easilyquantified, not remedied by monetary damages, and have been held to beirreparable harm upon which injunctive relief may be granted (see Gundermann &Gundermann Ins. v Brassily, 46 AD3d 615 [2007]).Finally, the Court finds that a balancing of the equities favorsplaintiffs. The Town will not suffer prejudice in light of the existing State statutoryscheme governing apprenticeship training programs, while in the absence of aninjunction plaintiffs will likely suffer a loss of customers and business within theTown.In view of the foregoing, this application for a preliminary injunction isGRANTED to the extent that defendants are hereby restrained from proceedingupon the proposed Local Law entitled Chapter 3E, "Apprenticeship Participationin Commercial Construction," pending further Order of the Court.The foregoing constitutes the decision and Order of the Court.Dated: December 19, 2013Ii(' . JOSEPH FARNETI1cting Justice Supreme CourtFINAL DISPOSITIONXNON-FINAL DISPOSITION
Suffolk County Elec. Contr. Assn., Inc. v Town Bd. of the Town of Islip 2013 NY Slip Op 33458(U) December 19, 2013 Supreme Court, Suffolk County Docket Number: 37609/2011 Judge: Joseph Farneti Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from vario
